Stein: Congress Must Respond to 'Deferred Action' Program

The Obama administration has begun implementation of a policy that, conservatively estimated, will allow almost 2 million illegal immigrants to remain in the United States and authorize them to work here.

The policy, known as deferred action, aims to implement without legal authority the amnesty-like provisions of the DREAM Act - a proposal that was rejected by Congress as recently as December 2010. In doing so, the administration is essentially nullifying a wide range of criminal and civil sanctions directed in law.

Congress, an institution with a well-earned 13 percent approval rating from the American public, has thus far failed to respond to the administration's usurpation of its constitutional authority over immigration policy. The administration's unilateral actions and Congress' refusal to react harms all Americans, but it directly affects the men and women whose job it is to uphold our nation's immigration laws.

A group of Immigration and Customs Enforcement officers filed a lawsuit last month against Department of Homeland Security Secretary Janet Napolitano and ICE Director John Morton charging that the policy directive issued by the secretary on June 15 forces them to violate their oaths as law enforcement officers as well as federal law.

Federal law requires that when officers encounter any immigrant who "is not clearly and beyond doubt entitled to be admitted" to the United States, it is their obligation that "the alien shall be detained ... [for] a removal proceeding." Under the policy directive of this administration, these law enforcement officers are instructed to ignore their legal obligations.

Federal employees should not be coerced by the administration to carry out a purely political agenda. In their complaint, the ICE officers claim "they will be disciplined or suffer other adverse employment consequences" if they place their obligation to enforce the law ahead of the administration's politically driven priorities.

In filing the suit, the officers are also challenging the entire legal basis on which the Obama administration is granting de facto amnesty to broad classes of illegal immigrants, by granting them deferred action and authorization to work. These are precisely the issues on which Congress should be challenging the executive branch's actions. However, while a relative handful of Members have spoken up, the Congressional leadership has shown no inclination to defend the interests of the American people or the institution's constitutional responsibilities.

Aside from merely being bad policy, the use of deferred action to grant administrative amnesty to millions of illegal immigrants raises important constitutional issues, which must be considered by the courts. Specifically, the suit charges that:

. Napolitano's directive violates federal law because there is no statutory basis for deferred action.

. There is no legal basis for the blanket issuance of work authorization to deferred action beneficiaries.

. Napolitano's deferred action directive amounts to a legislative act, which is the sole authority of Congress under our Constitution. Congress specifically defined the broad-based concept of "temporary protected status" as the sole statutory basis for class-based humanitarian parole.

. By granting deferred action and refusing to enforce laws against entire classes of illegal immigrants, the executive branch is violating its oath to faithfully execute the law.

. In granting deferred action and work authorization to a class of illegal immigrants, the executive branch has bypassed the formal rulemaking process and is in violation of the Administrative Procedure Act.

The American public owes the officers who have filed this lawsuit a great debt of gratitude. They alone are confronting an administration that is operating with no constraints on its "discretionary" power to permit virtually unlimited numbers of foreign nationals to live and work in the United States.

There is strong reason to believe that if the executive branch can successfully implement an unlegislated DREAM Act amnesty that, in a second Obama administration, a de facto amnesty would be implemented for virtually all those in the country illegally. The result is to create a huge incentive for future illegal immigration.

Equally as important, the lawsuit puts pressure on the Congressional leadership to reassert the legislative branch's constitutional role in immigration policy. Congress possesses the power to define the limits of executive discretion and require the administration to enforce our immigration laws as written. It has the power to bar the administration from using funds intended to enforce our immigration laws from being used to implement an amnesty for the people who broke our laws. Thus far, Congress has done nothing, and this is deeply troubling.

Left unchecked, the administration's actions will deeply and permanently upset the constitutional framework around which immigration policy is set and decided. In an age of large-scale human mobility, such a scenario cannot be sustained.

Dan Stein is president of the Federation for American Immigration Reform.